In this Chapter, the Commission examines jury challenges, that is, objections made to jurors after they have been drawn from the panel of potential jurors but before they have been sworn as jury members. The Juries Act 1976 currently provides for two types of challenge: challenges without cause shown, sometimes referred to as peremptory challenges, which involve objections made without putting forward a stated reason; and challenges for cause shown, that is, objections based on putting forward a specific reason. The 1976 Act permits each participant in a criminal or civil trial to make seven challenges without cause and, because of this, in practice there are very few occasions in which challenges for cause are made. In Part B, the Commission discusses challenges without cause shown (peremptory challenges) and, in Part C, challenges for cause. In both Parts, the Commission examines the two types of challenge by reference to comparable processes in other jurisdictions and then sets out its final recommendations.
KChallenges Without Cause Shown: Peremptory Challenges
(1)Current Law in Ireland
Section 20(2) of the Juries Act 1976 provides that, in every criminal trial involving a jury, the prosecution and each accused person may challenge 7 jurors without cause shown. Similarly, section 20(1) provides that, in every civil trial involving a jury, each party may challenge 7 jurors without cause shown. The challenge is generally made immediately before the juror steps up to swear the juror’s oath.160 Section 20(3) of the 1976 Act provides that whenever a juror is lawfully challenged without cause shown, he or she shall not be included in the jury.161 This does not mean that the person is excused from jury service; where a person is challenged, he or she returns to the jury panel and may very well be selected again in the balloting procedure and may, therefore, be liable to serve on another jury if he or she is not challenged.
The 1976 Act contains no equivalent of section 59 of the Juries Act 1927, which had included the prosecution’s right to “stand by” jurors in criminal cases, that is, to object to a juror without cause subject to the juror being retained for selection for a later trial if required. In that respect, the 1976 Act now places the prosecution and defence in a criminal trial on the same footing as far as challenges are concerned.162 In practice, in criminal trials, challenges are often exercised by the solicitor for the defence and for the prosecution, though counsel may also be involved in some instances.163 This contrasts with the position in the United Kingdom, where the Commission understands that counsel are more often involved in jury challenges.
No reasons are provided for the challenge without cause, nor do they involve any questioning of the potential juror; hence their peremptory nature. As such, they reflect “a subjective assessment of the likely attitude of the juror to the challenger’s case, based on matters such as: age, sex, appearance, address or employment.”164
(2)Comparative Approaches to Challenges Without Cause
(a)United Kingdom
During the 20th century and early years of the 21st century, the entitlement to make challenges without cause in the United Kingdom was, over time, reduced and, ultimately, abolished. In England and Wales, in 1948 the number of permissible peremptory challenges was reduced from 20 to 7,165 and section 12(1) of the Juries Act 1974 retained the number at 7 (as already noted, this was also adopted in the Juries Act 1976). The number was reduced to 3 by section 43 of the Criminal Law Act 1977, and the right of peremptory challenge was abolished entirely in England and Wales by section 118(1) of the Criminal Justice Act 1988166 and in Scotland by the Criminal Justice (Scotland) Act 1995.
In Northern Ireland, peremptory challenges were abolished in 2007 by section 13 of the Justice and Security (Northern Ireland) Act 2007, which amended the Juries (Northern Ireland) Order 1996. This change formed part of a number of related changes made to the 1996 Order in the 2007 Act in order to implement proposals in a 2006 Consultation Paper published by the UK Government167 to support the reintroduction of jury trial in Northern Ireland, thus replacing the non-jury Diplock courts that had been in place since the early 1970s in Northern Ireland. The 2006 Consultation Paper had concluded that the return of jury trial should be accompanied by the abolition of peremptory challenges in order to prevent any appearance of biased selection procedures.168
Notwithstanding the abolition of peremptory challanges, the Crown retains the right to “stand by,” which involves sending the juror back into the jury pool or panel, from where he or she could be called again if the pool runs out of potential jurors. Thus, Article 15(4) of the Juries (Northern Ireland) Order 1996 provides that the judge may at the request of the Crown, but not of a private prosecutor, order any juror to “stand by” until the panel has been used in full. There is no limit on the number of candidate jurors which may be challenged in this way. After the abolition of the peremptory challenge, the Attorney General for England and Wales issued guidelines on the use of the “stand by” procedure,169 which state that it should only be used on the basis of clearly defined and restrictive criteria: (a) to remove a juror in a terrorist or security case in which the Attorney General has authorised a check of the jury list or (b) where the juror is “manifestly unsuitable” and only if the defence agrees, for example, where a juror for a complex case would not be competent because of literacy issues.
(b)United States
All jurisdictions in the United States have some system of peremptory challenges in place.170 Counsel for both parties are permitted to question jurors prior to empanelment. There is support both judicially and academically for the abolition of peremptory challenges.171 Some States have reduced the number of peremptory challenges available to each party.172
As is the case in many jurisdictions, peremptory challenges are used in the United States as a means of influencing the composition of the final 12 members of the jury. Thus, in a 1992 Massachusetts trial of a Catholic priest for blocking access to abortion clinics, the prosecution used peremptory challenges to eliminate prospective jurors with Irish Catholic-sounding surnames, on the assumption that ethnicity and religion would control jurors’ perspectives.173 The conviction was overturned on the basis that this had violated the defendant’s right to a jury drawn from a representative cross-section of society.
In Swain v Alabama174the US Supreme Court found that the systematic use of peremptory challenges could violate the Equal Protection Clause of the US federal Constitution. In Batson v Kentucky175a majority of the US Supreme Court found that, once the defendant raises a prima facie case of racial discrimination with respect to peremptory challenges, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Furthermore, race-based challenges by the defendant are also prohibited. In JEB v Alabama176the Court went further and held that excluding jurors through the use of peremptory challenges on the basis of gender also violated the Equal Protection Clause. Blackmun J stated:
“All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.”
The emphasis here is on (a) the rights of prospective jurors, (b) the need to prohibit any injustice one or other party might suffer as a result of an unrepresentative jury, and (c) the damage caused to public confidence in the justice system by racially discriminatory practices in jury selection.177
(c)Canada
Section 634 of the Canadian Criminal Code provides that where an accused is charged with high treason or first degree murder, the prosecutor and the accused are each entitled to 20 peremptory challenges. Where the sentence for the offence charged exceeds five years, the prosecution and defence are each entitled to 12 peremptory challenges. In all other cases, both parties are entitled to 4 peremptory challenges each. In the case of a joint trial, Article 634 provides that “the prosecutor is entitled to the total number of peremptory challenges available to all the accused.”
(d)Australia
All Australian states and territories have some right of peremptory challenge available.
In New South Wales, each party is entitled to three peremptory challenges. The New South Wales Law Reform Commission has recommended that the right of peremptory challenge be retained,178 but suggested that the mechanism should be continually monitored and abolished if it is considered that it does not serve any legitimate purpose.179 The Jury Amendment Act 2010 did not change the position in New South Wales with respect to peremptory challenges.
In Victoria the three methods that exist to challenge a candidate juror are: challenge for cause, peremptory challenge, and the Crown’s right to stand aside.180 The Parliament of Victoria Law Reform Committee in its Final Report on jury service in 1996 recommended that the right of the Crown to stand aside prospective jurors should be substituted for a right to peremptorily challenge.181 The Committee also recommended that the Director of Public Prosecutions should publish guidelines on the use of peremptory challenges by the Crown.182 Sections 38 and 29 of the Juries Act 2000 now provide that the Crown may stand aside between 4 and 10 potential jurors per accused, depending on how many accused have been arraigned in the trial. Each accused is entitled to challenge peremptorily between 4 and 6 candidate jurors, depending on how many accused have been arraigned in the trial.
(e)New Zealand
Section 17 of the New Zealand Juries Amendment Act 2008 provides that, in every case tried by a jury, each party may challenge without cause 4 jurors. When two or more persons are being tried together, the prosecution may challenge without cause a maximum of 8 jurors.
Under section 24 of the Juries Act 1981, as amended by the Juries Amendment Act 2008, the prosecution and defence are each entitled to 4 peremptory challenges. Where there are two or more defendants, the Crown is entitled to a total of 8 challenges without cause.
Under section 27 of the 1981 Act, a trial judge can direct individuals to stand by until all other jurors are called and challenged, and this power does not appear to be limited to any particular number of potential jurors.
In its Report on Juries in Criminal Trials,183 the New Zealand Law Commission recommended that the mechanism be retained. The Commission also recommended the introduction by the prosecution of guidelines explaining the bases on which it is or is not appropriate to use the peremptory challenge. The Juries Amendment Act 2008 allowed for the retention of peremptory challenges, but did not refer to a system of guidelines for their use.
(f)Hong Kong
In Hong Kong, section 29 of the Jury Ordinance, provides that both the defence and prosecution are entitled to challenge up to 5 candidate jurors without cause. The prosecution is entitled to “stand by” candidate jurors. In Hong Kong, the court has considerable discretion in excluding persons from jury service during the trial, prior to the verdict. The Law Reform Commission of Hong Kong considered the area in 2008 but did not recommend any reform.184
(3)Consultation Paper Recommendations
The Consultation Paper outlined a number of arguments both against peremptory challenges and also in favour of their retention.
The arguments listed against peremptory challenges included the following: peremptory challenges have the potential to cause juror frustration and humiliation,185 the challenge is inherently arbitrary,186 it is inefficient,187 such challenges do not give rise to representative juries and provide scope for discrimination,188 they can be exploited by potential jurors,189 the challenge for cause is a sufficient alternative to meet the needs of justice,190 and it is an ineffective tool in excluding biased jurors.191
Abramson has commented on the position in the United States:192
“Lawyers often use their peremptory challenges on the basis of some suspicion that young or old, rich or poor, white-collar or blue-collar, Italian or Irish, Protestant or Jewish jurors will be favourable to the other side. The effect of such peremptory challenges may be to lessen the representative nature of the jury actually seated. Why should lawyers be able to undermine the cross-sectional nature of the jury at all? Such a question forces us to explore, at a more philosophical level, what theory of representation we are trying to practice when we reform juries to be cross sections of the community.”
Commenting on jury systems more widely, Vidmar notes:
“Critics of the peremptory challenge argue that not only does the challenge permit, and perhaps even encourage, invidious discrimination against potential jurors, it causes jurors to become ‘frustrated and cynical about the justice system.’”193
In the Irish setting, it has been suggested that “[i]ts arbitrary nature is just the sort of thing which brings the law into disrepute, especially in the eyes of those who have given of their time to act as jurors.”194
In favour of the peremptory challenge, the Consultation Paper noted the following arguments: the challenge for cause is not a sufficient alternative to the peremptory challenge in meeting the needs of justice,195 the accused is afforded some degree of control over the composition of the jury,196 the challenge can assist in securing a representative jury,197 and the peremptory challenge ensures that competent and impartial jurors are selected.198
As already noted, a number of law reform agencies have recommended the retention of peremptory challenges. For example, the New Zealand Law Reform Commission has noted that:
“One advantage which peremptory challenges have over challenges for cause is that the latter are more demeaning, as counsel must publicly articulate their reasons for asserting a juror’s unsuitability. Prior to empanelling, some judges explain to the jurors the peremptory challenge process and tell them that the reasons for challenge are not to be regarded as personal. This takes most of the sting out of peremptory challenges, and the Commission would endorse this practice.”199
The New Zealand Law Reform Commission also noted that peremptory challenges provide the accused with a measure of control over the composition of the jury that will judge him or her, and that if the opportunity to challenge in such a manner were to be removed, the accused may hold a sense of grievance or injustice as a result.200
On balance, the Consultation Paper provisionally recommended that peremptory challenges be retained.201 It provisionally formed the view that a reduction from 7 peremptory challenges to 5 may be appropriate, but ultimately invited submissions as to whether the number should be reduced.202
The Commission did not consider that the development of statutory, enforceable guidelines on the use of peremptory challenges would be a useful reform as there would be no clear basis upon which to monitor compliance with the guidelines.203 The Commission did consider, however, that guidelines may be useful in assisting prosecuting counsel in making a decision on whether it is appropriate to peremptorily challenge, and therefore provisionally recommended that the Director of Public Prosecutions should develop guidelines on when it is appropriate to use them.204
(4)Submissions, further consultation and Final Recommendations
The submissions received by the Commission, and its further consultations with interested parties, reflected a wide diversity of views on peremptory challenges. Some consultees favoured abolition, others suggested a reduction in the number and others urged retention of the current number of peremptory challenges. From a procedural point of view, it was noted that fewer individuals might have to be summoned for jury service if the number of challenges were reduced.
As to the practice of challenges, consultees noted that, in general, both sides in a criminal trial ordinarily use between 3 and 5 challenges each, but that in some instances all 7 challenges are used by both the prosecution and defence. A number of consultees acknowledged that the use of peremptory challenges has the potential to undermine the principles of representativeness. It was suggested by some that conservatively dressed individuals, who may be linked to a certain social class, are frequently or always challenged peremptorily, but other consultees considered that this was not necessarily their experience. Equally, it was noted that in some instances, there might be a preference by one side for a jury comprising a majority of women or, as the case may be, a majority of men. It was also noted that, as both sides were entitled to the same number of challenges, any apparent preference for, or dislike of, a person on grounds of his or her social class or sex by one side would be cancelled out through the exercise of peremptory challenges by the other side. Consultees therefore noted that, in practice, any attempt by either side to use all their peremptory challenges to achieve a specific “balance” was unlikely to achieve this aim. Consultees accepted that they had been involved in trials involving a jury comprising 12 women and (reflecting the invariable position before the de Burca case and the enactment of the Juries Act 1976) a jury comprising 12 men. The Commission reiterates, as already noted in Chapter 1, that a jury of 12 women or a jury of 12 men is perfectly permissible; jury representativeness requires that the panel or pool from which a jury is selected should be broadly representative of the community, not that the jury actually chosen is broadly representative. In addition, the Commission notes that, in practice, the process of peremptory challenges generally results in juries that reflect the panel or pool from which they emerge.
Consultees acknowledged that the process of peremptory challenge could cause embarrassment for a potential juror if not handled suitably; and the Commission notes that, as pointed out in Chapter 1, while jury service is correctly described as a duty rather than a right, it should be valued and supported to the greatest extent possible by the State. Consultees noted that trial judges usually explained that the use of peremptory challenges did not involve any personal slight on a potential juror, and it was agreed that it would be appropriate that the procedure be explained clearly and, as far as practicable, in a consistent manner.
Consultees noted that, by contrast with the position in the past when the prosecution had the additional power to “stand by”, the current law dealt with both sides equally (with the arguable exception of the minority of trials involving multiple defendants, referred to below). Indeed, it was noted that the operation of peremptory challenges in practice meant that a potential juror was not completely shut out from being considered for jury service; a juror who is challenged peremptorily remains part of the jury panel and may be selected again through the balloting procedure and, if no objection is made, may serve on a different jury. Consultees noted that this often occurred in practice in the context of court areas such as Dublin where more than one jury was required from the panel summoned for jury service.
As to peremptory challenges in multiple-defendant trials, consultees did not favour allowing the prosecution to have the total number of peremptory challenges available to all the accused (the position in Canada, but not the approach taken in any other jurisdiction reviewed).
Having considered this matter again in preparing this Report, the Commission accepts that, as summarised above, a number of valid arguments can be made both for the abolition of, and retention of, peremptory challenges. In arriving at a final conclusion and recommendation, the Commission remains of the view as expressed in the Consultation Paper that, on balance, the arguments in favour of retaining peremptory challenges outweigh those in favour of their abolition. The Commission notes in this respect that the peremptory challenge process as it operates in practice in Ireland has the effect that juries are broadly representative of the pool or panel from which they are selected (and the Commission emphasises that this is a separate matter from the issue discussed in Chapter 2 as to whether the pool or panel as currently constituted should be expanded). The Commission has also taken into account that, in the majority of common law jurisdictions reviewed for this project, the concept of peremptory challenge has been retained, including after extensive consideration by law reform agencies. In this respect, the Commission agrees with the views expressed by the New Zealand Law Reform Commission that the retention of peremptory challenges affords the accused some degree of control over the composition of the jury, that, in practice, it is consistent with securing a representative jury, and that it also ensures that competent and impartial jurors are selected.
The Commission also agrees that, when suitably explained, the process of peremptory challenge has an advantage over the process of challenges for cause (discussed in Part C, below), which can be more demeaning because the solicitor or counsel must publicly articulate their reasons for asserting a juror’s unsuitability. The Commission also notes that the complete abolition of peremptory challenges could lead to lengthy pre-trial selection of jurors, based on detailed questioning of candidate jurors, which in itself could be intrusive and demeaning, as well as involving additional trial costs.
As to whether the number of peremptory challenges should be reduced, the Commission has concluded that no clear case has been made for this and that, therefore, it is more appropriate to retain the current law. This includes concluding that there should not be a different rule for the minority of trials involving multiple defendants. The Commission notes that its consultative process has revealed a good qualitative understanding of the operation of peremptory challenges in practice. The process could, perhaps, benefit from future empirical research, which the Commission discusses more generally in Chapter 11, below; and the Commission considers that the ongoing application in practice of peremptory challenges, and any future reform of this area, could beneficially be preceded by such research. The Commission has also concluded that no convincing case has been made for statutory guidance on the criteria to be used for peremptory challenges, but, equally, that the courts should continue to provide clear and consistent guidance to the effect that the use of peremptory challenges does not involve any personal slight on a potential juror, and that the Director of Public Prosecutions could consider whether general guidance would be suitable for inclusion in the Guidelines for Prosecutors.205
The Commission recommends that the current law in the Juries Act 1976 on challenges without cause shown (peremptory challenges) should be retained. The Commission also recommends that the courts should continue to provide clear and consistent guidance to the effect that the use of peremptory challenges does not involve any personal slight on a potential juror and that the Director of Public Prosecutions consider whether general guidance on challenges without cause shown would be suitable for inclusion in the Director’s Guidelines for Prosecutors.
